PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

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No. 15-1602

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UNITED STATES OF AMERICA

v.

RAYMOND ANTHONY NAPOLITAN, Appellant

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On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2-11-cr-00146-001) District Judge: Honorable Mark R. Hornak

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Submitted: February 11, 2016

Before: FUENTES, KRAUSE, and ROTH, Circuit Judges

(Opinion filed: July 19, 2016)

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AKIN ADEPOJU, ESQUIRE RENEE PIETROPAOLO, ESQUIRE2 Office of Federal Public Defender 1001 Liberty Avenue 1500 Liberty Center Pittsburgh, PA 15222

Counsel for Appellant

DONOVAN J. COCAS, ESQUIRE REBECCA R. HAYWOOD, ESQUIRE Office of United States Attorney
700 Grant Street
Suite 4000 Pittsburgh, PA 15219

Counsel for Appellee

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OPINION OF THE COURT

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KRAUSE, Circuit Judge

.
Raymond Anthony Napolita n appeals his federal criminal sentence for possession w ith intent to distribute five hundred grams or more of coca ine on the ground that it was substantively unreasonable for the District Court to run his federal sentence consecutively to a separate state sentence that Napolitan now claims is itself unconstitutional under Alleyne v. United States , 133 S. Ct. 2151 (2013). Today we join our sister Circuits in holding that a defendant may not challenge the reasonableness of hi s federal sentence on appeal via a collateral attack on a prior state sentence. Accordingly,
we will affirm the sentence im posed by the District Court.3 I. Background

Napolitan was arrested in 2007 after police discovered nearly a kilogram of coca ine in his home in Farrell, Pennsylvania, along with drug trafficking paraphernalia and a series of firearms. In 2008, ba sed on facts that came to light as part of the drug bust, Na politan was convicted of sexual assault and simple assault in a bench trial in the Mercer County Court of Common Pl eas. Napolitan was then sentenced in state court to five to ten years 1 pursuant to a then-operational Pennsylvania st ate law, 42 Pa. Cons. Stat. § 9712, that increased the manda tory minimum sentence for a
“crime of violence” when the sentencing judge determined by a preponderance of the evid ence that the perpetrator possessed a firearm that was us ed to frighten the victim during the commission of the offense. The Pennsylvania Superior Court has since ruled en banc that this sentencing regime is unconstitutional in light of Alleyne , which held that whenever the existence of a partic ular fact serves to increase a statutory minimum sentence as a matter of law, that fact
amounts to an “element” of the underlying crime that must be proven to the factfinder beyond a reasonable doubt, Alleyne

, 133 S. Ct. at 2158. Commonwealth v. Watley , 81 A.3d 108,

1 The Government avers th at Napolitan was instead
sentenced to 66-132 months in state court. For purposes of this appeal, we accept that Napolitan was sentenced under
state law “to a term of not less than 5 years nor more than 10 years on the crime of Sexual Assault,” as reflected in the trial court judge’s January 9, 2009 opinion, which was “written pursuant to Pennsylvania Rule of Appellate Procedure 1925 following [Napolitan’s] timely a ppeal from the denial of his [motion for post-sentence re lief].” App. 389, 391.4 116-117 & n.4 (Pa. Supe r Ct. 2013) (en banc); see also
Commonwealth v. Valentine , 101 A.3d 801, 811 (Pa. Super Ct. 2014), appeal denied 124 A.3d 209 (Pa. 2015);
Commonwealth v. Newman , 99 A.3d 86, 101 n.9 (Pa. Super Ct. 2014) (en banc), appeal denied , 121 A.3d 496 (Pa. 2015).

In 2011, a grand jury in the Western District of Pennsylvania indicted Napolitan on two counts related to the 2007 drug bust: possession with intent to distribute five hundred grams or more of cocain e, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(ii), and possession of a firearm in furtherance of a drug traffickin g crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). A ju ry convicted Napolitan of the drug possession charge, 2 and he was initially sentenced to 78 months’ imprisonment, to run consecutively to his existing state sentence. After Napolitan appealed his co nviction to our Court, requesting a new trial on the ground of alleged false witness testimony, and the Government cross-appealed, claiming the District Court should have applied certain sentencing enhancements, we affirmed the conviction but remanded for resentencing in co nsideration of the sentencing
enhancements at issue. United States v. Napolitan , 762 F.3d 297, 301, 307 (3d Cir. 2014).

At resentencing, the District Court applied one of the sentencing enhancements and entered a 90-month sentence for the federal drug convictio n. After considering the arguments Napolitan now raises on appeal, the District Court

2 The firearm count was no t submitted to the jury
because the District Court granted Napolitan’s motion for judgment of acquittal pursuant to Federal Rule of Criminal
Procedure 29.5 stated on the record that it was appropriate to run the federal sentence consecutively to Napolita n’s state sentence because, even though the offenses underl ying both sentences arose in the same general time frame, th e state and federal crimes
were distinct. 3

Napolitan now appeals, arguing that the District
Court’s decision to run his tw o sentences consecutively was substantively unreasonable. He urges—as he did at his resentencing—that because his st ate sentence was calculated under a statute that required an increase in the mandatory
minimum sentence based on a judge’s determination, by a preponderance of the evidence, that Napolitan used a firearm to intimidate his victim, his state sentence violated Alleyne

. 4

3 To the extent Napolitan sugg ests that the District Court imposed the federal sentence consecutively in an effort to “fully punish[]” Napolita n for the state and federal convictions, Appellant’s Br. 24, he mischaracterizes the
record. The District Court si mply applied U.S.S.G. § 5G1.3 in making its determination th at the sentences for the two temporally proximate but distinct offenses should run consecutively; it did not state or imply that it was seeking to “fully punish” Napolitan for bot h offenses in some general sense outside of the discretion afforded to it by the Guidelines. Indeed, the Distri ct Court explicitly rejected Napolitan’s argument that, becaus e both the state and federal
crimes arose in a similar time period, they were related and thus more likely to warrant concurrent sentences under § 5G1.3, and Napolitan does no t appear to challenge that conclusion on appeal.

4 Napolitan’s argument rests on an assumption that, in the context of a challenge to his federal sentence on direct6 According to Napolitan, und er a constitutional state sentencing regime, his state se ntence would have elapsed by
the time the federal senten ce was handed down; thus, Napolitan argues, he had been fully punished for his state
conviction at the time of hi s federal sentencing and a
concurrent federal sentence was therefore warranted. For the reasons set forth below, we co nclude the District Court did
not abuse its discretion in ordering Napolitan’s federal sentence to be served consecutively to his state sentence.

II. Jurisdiction and Standard of Review

We have jurisdiction to review the propriety of a federal sentence pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review the s ubstantive reasonableness of a District Court’s sentence—including its choice to run the sentence consecutively to a state court sentence—for abuse of discretion, overturning such a sentence “only where ‘no reasonable sentencing court wo uld have imposed the same sentence on that particular defendant for the reasons the district court provided.’” United States v. Freeman , 763 F.3d 322, 335 (3d Cir. 2014), cert. denied sub nom. Mark v. United
States , 135 S. Ct. 1189 (2015) and cert. denied , 135 S. Ct. 1467 (2015) (quoting United States v. Tomko , 562 F.3d 558, 568 (3d Cir. 2009) (en banc)); United States v. Gillette , 738 F.3d 63, 79 (3d Cir. 2013) (c onsidering a challenge to the

appeal, Alleyne would apply retroactively to his state

sentence. But see United States v. Reyes , 755 F.3d 210, 212- 13 (3d Cir. 2014) (concluding Alleyne does not apply retroactively to cases on collateral review); United States v.
Winkelman , 746 F.3d 134, 136 (3 d Cir. 2014) (same).
Because we resolve this case on other grounds, we need not
address this issue.7 substantive reasonableness of the consecutive nature of two sentences).

III. Discussion

Napolitan acknowledges that th e District Court “ha[s] no authority to cure his illegal state sentence,” Appellant’s Br. 31, and thus that he may not on direct appeal contest the validity of his state sentence. What he is arguing on appeal, he contends, is something entir ely different: that a federal sentencing court necessarily abus es its discretion and imposes a substantively unreasonable se ntence if it runs a federal sentence consecutively to an invalid state sentence. We find the distinction Napolitan draws to be one without a difference because his proposed rule is, in fact, premised on exactly the type of collateral attack on his state sentence he insists he does not seek—a claim properly raised in a habeas petition, pursuant to 28 U.S.C. § 2254.

In any event, the argument s for such a rule already have been rejected by the Supreme Court. In Custis v. United
States , the Supreme Court held that , with the exception of two circumstances, “a defendan t in a federal sentencing proceeding may [not] collatera lly attack the validity of previous state convictions that are used to enhance his sentence.” 511 U.S. 485, 48 7 (1994). There, a defendant sought to challenge the validity of past convictions that played a role in his federal sent encing on the gr ounds that the past convictions were obtai ned with unconstitutionally
ineffective assistance of counse l and in violation of his right
under Boykin v. Alabama , 395 U.S. 238 ( 1969), to knowingly and voluntarily enter a guilty plea. Custis , 511 U.S. at 488. The Supreme Court disagreed an d held that a defendant may challenge the propriety of a previous state conviction that8 affects his current federal se ntencing only where (1) he alleges the “unique constitutional defect” that he was denied the right to counsel under Gideon v. Wainwright , 372 U.S. 335 (1963), in the proceedi ngs leading to such prior conviction, or (2) the statute under which he is currently being sentenced explicitly pr ovides for th e ability to collaterally attack “prior convictions used for sentence enhancement purposes.” Custis , 511 U.S. at 490-97; accord
United States v. Escobales , 218 F.3d 259, 261-263 (3d Cir. 2000) (recognizing no Custis exception (1) for an alleged violation of a defendant’s right to a jury trial or (2) in the language of the criminal hist ory provisions of the U.S. Sentencing Guidelines); United States v. Thomas , 42 F.3d 823, 824-25 (3d Cir. 1994) (applying Custis to bar a defendant’s challenge to his federal sentence based on a constitutional defect in a prio r state conviction because he alleged no Gideon violation and the applicable U.S. Sentencing Guideline lacked statutory authorization for such a challenge).

In reaching its conclusion in Custis , the Supreme Court sought to avoid condoning instances where, “[b]y challenging [a] previous conviction, the defendant [asks] a district court”—or here, an appellate court—“‘to deprive the statecourt judgment of its normal for ce and effect in a proceeding that has an independent purpose other than to overturn the prior judgment.’” 511 U.S. at 497 (quoting Parke v. Raley

, 506 U.S. 20, 30 (1992)). Instea d, the Court prescribed that where a defendant believes his prior state convictions were unlawful, the proper method of challenging such convictions is either through direct appeal in the state court or through9 federal habeas review. 5 Id. ; Escobales , 218 F.3d at 261; see also Daniels v. United States , 532 U.S. 374, 381 (2001) (“Our system affords a defendant conv icted in state court numerous opportunities to challenge the constitutionality of his conviction. He may raise co nstitutional claims on direct appeal, in postconviction procee dings available under state law, and in a petition for a wr it of habeas corpus brought pursuant to 28 U.S.C. § 2254 . . . .”). 6 Only if a defendant “is

5 In July 2015, almost five months after the District Court entered Napolitan’s federa l sentence and nearly seven years after the state court se ntenced Napolitan for his state conviction, Napolitan filed such a habeas petition alleging, among other things, ineffective assistance of counsel in his state proceedings and a due process violation for being
sentenced under a state statute later deemed unconstitutional.
Whatever the resolution of that petition, however, its pendency does not be ar on the validity of Napolitan’s claim in this appeal that his fede ral sentence was substantively unreasonable at the time it was imposed.

6 A plurality of the Suprem e Court has recognized that exceptions to the Custis rule may also exis t in the 28 U.S.C. § 2254 or § 2255 context where “no channel of review was actually available to a defenda nt with respect to a prior conviction, due to no fault of his own,” Daniels , 532 U.S. at 383-84 (plurality opin ion), such as in the case of newly
discovered evidence that comes to light after the “time for
direct or collateral review ha s expired” or a state court’s refusal without justification “t o rule on a constitutional claim that has been properly presented to it,” Lackawanna Cty. Dist. Att’y v. Coss , 532 U.S. 394, 405 (2001) (plurality opinion). Neither circumstance is presen ted here, as Napolitan contends10 successful in attacking these st ate sentences” through one of the proper avenues, may he “the n apply for reopening of any
federal sentence enhanced by the state sentences.” Custis

, 511 U.S. at 497. The Co urt grounded its opinion in Custis in the goals of “promoting finality of judgments,” ensuring confidence in the integrity of the courts, advancing “the orderly administration of jus tice,” and avoiding asking sentencing courts “to ru mmage through frequently
nonexistent or difficult to obtai n state-court transcripts or records that may date from another era.” Id. at 496-97.

Drawing on both the l ogic and language of Custis , we see no reason why state sentences should not be accorded the same respect and be subject to the same forms of substantive
review afforded to state convi ctions. To hold otherwise
would be to contravene Custis by allowing a defendant “to deprive [a] state-court judgment of its normal force and effect” by way of a direct app eal of his federal sentence—“a proceeding that has an indepe ndent purpose other than to overturn the prior judgment.” Id. at 497 (quoting Parke , 506 U.S. at 30). We therefore ho ld that an appellant may not collaterally attack a state court sentence as part of a federal

that his state post-conviction co llateral review counsel was ineffective for failing to raise his claim based on Alleyne

, which was decided while his post -conviction collateral review petition was pending. Thus, wh ile Napolitan argues that “he has no remedy” to cure his allegedly unconstitutional state sentence, Appellant’s Br. 18, he does not now challenge his state sentence based on newly discovered evidence nor allege that the state courts have unjust ifiably refused to rule on his Alleyne claim.11 sentencing challenge unless (1) he claims a Gideon violation, or (2) the relevant federal st atute or sentencing guideline expressly authorizes a collateral attack. 7

Neither pertains here. Napolitan’s reliance on Alleyne does not trigger the “unique constitutional defect” of a
Gideon violation. Id. at 496. Nor does Napolitan identify any express authorization to support his collateral attack—
either in a statute or in the sentencing guide lines. On the contrary, in ordering Napolita n’s federal sentence to run consecutively to his state sentence, the District Court relied upon U.S.S.G. § 5G1.3, whic h confers on a defendant no express permission to challe nge the legality of a prior sentence, and by its terms affo rds sentencing courts broad discretion to run multiple sent ences for unrelated crimes consecutively, concurrently, or partially concurrently. Moreover, the Supreme Court has recognized that, as a general matter, district courts may exercise their sound discretion in choosing whethe r to run a federal sentence consecutively to an existing state sentence. See Setser v.
United States , 132 S. Ct. 1463, 14 68 (2012) (citing Oregon v.

7 While Custis only referenced the federal statute under which a defendant is sentenced as a potential source of authorization to collaterally atta ck a past conviction, we have interpreted Custis to provide a route to launch such a
collateral attack if the federal sentencing guideline pertinent to a defendant’s federal sentence confers such authorization,
as well. E.g.

, Escobales , 218 F.3d at 260; Thomas , 42 F.3d at 824. In extending Custis ’s reach to prior state sentences, we adhere to our prior interpretati on that sentencing guidelines could—in theory—offer an exception to the Custis rule.12 Ice , 555 U.S. 160, 168-69 (2009 )) (“Judges have long been
understood to have discretion to select whether the sentences they impose will run concurre ntly or consecutively with respect to other sentences . . . th at have been imposed in other proceedings, including state proceedings.”).

Our extension today of the Custis rule to state sentences leaves no room for Napolitan to appeal the consecutive running of his fe deral sentence. For while couched as a challenge to the substantive reasonableness of his federal sentence, Napolitan’s claim boils down to the argument that a sentencing court abuses its considerable discretion to run sentences consecutively unless it independently confirms the va lidity of an existing state sentence—an approach that woul d require federal sentencing
courts to undertake collateral review of any allegedly illegal state sentence and, upon a findi ng of constitutional defect, to determine the permissible length of the state sentence and to run a commensurate portion of the federal sentence concurrently to the unexpired state sentence to offset any
unconstitutional time. Such a rule would not only amount to
a considerable constriction of di strict courts’ discretion as to
whether to run sentences concur rently or consecutively, but
also would be a cumberso me imposition on federal sentencing and a clear repudia tion of the finality typically afforded to state court judgm ents—the very reasons the Supreme Court rejected such a rule as applied to state
convictions in Custis , 511 U.S. at 496-97.

No doubt for thes e reasons, every Court of Appeals to have addressed the question ha s extended the precepts of
Custis to bar collateral attacks in federal sentencing appeals against not only prior state conv ictions, but also prior state

sentences. In United States v. Saya , for example, the13 defendant argued that he wa s improperly sentenced as a
“career offender” under U.S.S.G. § 4B1.1 based on two prior
Hawaii state law convictions. 2 47 F.3d 929, 939-40 (9th Cir. 2001). Citing to Custis , the Ninth Circuit rejected the defendant’s attempt to “in effect . . . mount a collateral attack on his prior state sentence,” determining instead that there is “no reason why the Custis rule should not apply to collateral attacks on prior state sentences .” Id. at 940 (emphasis in original); see also United States v. Galvan , 453 F.3d 738, 741 (6th Cir. 2006) (concluding that “the district court at sentencing need not collaterally review [a defendant’s] prior sentences”); 8 United States v. Warren , 335 F.3d 76, 77-79 (2d Cir. 2003) (holding a defendan t may not collaterally attack the validity of a past federal “conviction or sentence” based

on Apprendi v. New Jersey , 520 U.S. 466 (2000), in connection with a supe rvised release revocation proceeding). We join these Courts of Appeals today.

IV. Conclusion

For the reasons stated above, we will affirm the sentence imposed by the District Court.

8 While the Galvan court did not cite to Custis , it cited
to the decision of another Co urt of Appeals that did and adopted the two exceptions to the Custis rule, thereby tracking Custis in substance. Galvan , 453 F.3d at 741-42 (citing United States v. Mateo , 271 F.3d 11, 16 (1st Cir. 2001)).